Filed 6/24/24 Gallegos v. Partners Personnel-Management Services CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

DOLORES GALLEGOS,

Plaintiff and Appellant,

v.

PARTNERS PERSONNEL-MANAGEMENT 

SERVICES LLC et al.,

Defendants and Respondents.

F086889

(Super. Ct. No. 22CECG03043)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Kristi C. 

Kapetan, Judge.

Elkin Gamboa, Michael Elkin, Jessica Gamboa, Benjamin McLain and Elizabeth 

Tsolakyan; and Kyle Todd for Plaintiff and Appellant. 

Medina McKelvey, Timothy B. Nelson and Kyle W. Owen, for Defendant and 

Respondent Partners Personnel-Management Services LLC, and Nexem Partners, LLC. 

Littler Mendelson, Jason H. Borchers and Samuel O. Munson, for Defendant and 

Respondent Touchstone Pistachio Company LLC. 

-ooOoo-
2

Plaintiff and appellant Dolores Gallegos appeals the trial court’s ruling granting a 

motion to compel arbitration brought by defendant and respondent Partners PersonnelManagement Services, LLC. Defendant Touchstone Pistachio Company, LLC also 

appears as respondent on appeal. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Partners Personnel-Management Services, LLC (Partners Personnel) is a national

staffing company.1 “As part of its business operations, Partners Personnel hires 

employees, or associates, and connects those associates with businesses, or clients, that 

are in need of temporary staff.”2 Dolores Gallegos was hired by Partners Personnel in 

August 2021 and assigned to work temporarily at Partners Personnel’s client, Touchstone 

Pistachio Company, LLC (Touchstone), a commercial grower, processer, and distributor

of pistachio nuts located in or near Fresno. Touchstone grows, processes, packages, and 

sells pistachios. With regard to sales, Touchstone sells nuts locally as well as throughout 

the country and around the world. “Partners Personnel’s associates are responsible for 

sorting, stacking, boxing, and labeling the products that are delivered to customers.”

3

 

“These staffing personnel have a direct impact on Touchstone’s production process and 

1 Respondent Nexem Partners, LLC is also a named party in this action. Nexem 

Partners, LLC was a staffing company that was affiliated with Partners Personnel. Here, 

Partners Personnel refers to both Partners Personnel-Management Services, LLC and 

Nexem Partners, LLC.

2 Declaration of Ashleigh Haddad, Branch Manager of the Fresno field office of 

Partners Personnel. 

3 Declaration of Ashleigh Haddad, Branch Manager of the Fresno field office of 

Partners Personnel. 
3

the finished goods that are then placed in the stream of interstate commerce for 

consumption or resale by customers throughout the United States and abroad.”4 

When Gallegos was hired by Partners Personnel, she underwent on August 4, 

2021, an onboarding process at Partners Personnel’s Fresno office, during which she 

signed various documents, including a document entitled Mutual Agreement for 

Individual Arbitration (arbitration agreement). A client specialist for Partners Personnel 

declared, with respect to the arbitration agreement: “One phase of the onboarding 

program addresses the topic of arbitration. Within this independent category of the 

training program, associates are presented with an agreement to arbitrate any potential 

claims that may arise through their employment with Partners Personnel. The program 

explains to associates what arbitration means, and what it means if they sign the 

arbitration agreement. As with all aspects of the associate onboarding process, Partners 

Personnel staff, like me, are available to assist with questions and provide further 

explanation. There are also many Partners Personnel staff members that are fluent in the 

Spanish language that can assist Spanish-speaking associates when needed.” 

As noted above, Gallegos signed the arbitration agreement during her onboarding 

session. The arbitration agreement provided that Partners Personnel and Gallegos agreed 

to arbitrate any claims arising from Gallegos’s employment with Partners Personnel. The 

arbitration agreement also contained a class action waiver as follows: “To the maximum

extent permissible by law, arbitration shall proceed solely on an individual basis without 

the right for any claims to be arbitrated on a class, collective, representative, or group 

action basis or on bases involving claims brought in a purported representative capacity 

4 Declaration of Sherry Smiley, Chief Talent Officer of Assemi Group, Inc. and 

its affiliated companies, including Touchstone. 
4

on behalf of others.” The agreement specifies, in conclusion, that “[t]he company and 

employee both understand and agree that they are entering into this agreement 

voluntarily,” and that by doing so their “disputes shall be resolved in individual 

arbitration.” (Capitalization omitted.) 

Partners Personnel assigned Gallegos to work at Touchstone’s pistachio 

processing plant in Chowchilla. Gallegos worked there for approximately six weeks, 

from the end of August 2021 to early October 2021. The Chowchilla processing facility

contained conveyer belt systems for processing and packing pistachios. Gallegos 

monitored the conveyor belts as they carried pistachios for packing. Gallegos described 

her duties in a declaration: “The pistachios I worked with at the Chowchilla facility were 

loaded, using a conveyer belt system, into large transport bags for distribution. I 

transported pistachios from one conveyer belt to another. If the pistachios fell off the 

conveyer belts, I put the pistachios back on the conveyer belts. I helped make sure the 

conveyer belts transported the pistachios into large transport bags. I regularly physically 

placed pistachios into the large transport bags. After the transport bags were filled, I 

observed that the large transport bags of pistachios were then loaded onto trucks and 

taken away from the factory.” 

On September 26, 2022, Gallegos filed a complaint initiating the instant action, a 

putative class action, on behalf of herself and other similarly situated workers. 

Gallegos’s complaint alleged violations of the Labor Code’s wage and hour provisions by 

Touchstone and Partners Personnel, including failure to pay wages, failure to provide

meal and rest periods, failure to pay wages when due, and failure to provide accurate 

wage statements. Gallegos also sought relief under Business and Professions Code 

section 17200 et seq. (unfair business practices). On December 1, 2022, Gallegos filed a 
5

first amended complaint that added a cause of action for civil penalties pursuant to the 

Private Attorneys General Act for the aforementioned Labor Code violations. 

On February 10, 2023, Partners Personnel filed a motion to compel arbitration of 

Gallegos’s claims on an individual basis under the terms of the arbitration agreement, and 

moved to dismiss her class claims pursuant to the class action waiver contained in the 

agreement. In other words, Partners Personnel sought to enforce, under the Federal 

Arbitration Act (FAA or the Act), the arbitration agreement Gallegos had signed when 

Partners Personnel hired her. Partners Personnel argued the FAA preempted otherwise 

applicable California law. Gallegos filed on July 12, 2023, an opposition to Partners 

Personnel’s motion, primarily asserting that Gallegos was a transportation worker under 

Section 1 of the FAA and as such the arbitration agreement she signed was exempted 

from application of the FAA. Gallegos further contended, among other claims, that even 

if the FAA were applicable to the arbitration agreement, the arbitration agreement was 

unenforceable because it was unconscionable. 

After a hearing on the matter, the trial court issued, on July 26, 2023, an order

granting Partners Personnel’s motion to compel arbitration of Gallegos’s claims on an 

individual basis. The court ruled that a written arbitration agreement existed between the 

parties; the FAA governed the agreement because Gallegos was not a “transportation 

worker” within the meaning of Section 1 of the FAA; and once a single defective term 

was properly severed, the agreement was not unconscionable. Accordingly, the trial 

court ordered Gallegos to arbitrate her individual claims. The court also enforced the 

class action waiver contained in the arbitration agreement and dismissed Gallegos’s class 

claims. Finally, the court stayed Gallegos’s Private Attorneys General Act claims 
6

pending resolution of her individual claims through arbitration proceedings. Gallegos 

appealed. 

DISCUSSION

I. The Trial Court Properly Applied the FAA Because Gallegos Was Not A

Transportation Worker Within the Meaning of Section 1 of the FAA 

A. Standard of Review

“We review de novo the superior court’s interpretation of an arbitration 

agreement, including whether federal or state law governing arbitration applies, when the 

interpretation does not involve conflicting extrinsic evidence.” (Nixon v. AmeriHome 

Mortgage Co., LLC (2021) 67 Cal.App.5th 934, 946 (Nixon); see Victrola 89, LLC v. 

Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 346; Cortez v. Doty Bros. 

Equipment Co. (2017) 15 Cal.App.5th 1, 12 [“We apply de novo review to the trial 

court’s interpretation of an arbitration agreement that does not involve conflicting 

extrinsic evidence.”].) We will independently review the trial court’s determinations

here, given there is no issue of conflicting extrinsic evidence relevant to interpretation of 

the arbitration agreement. 

B. The Trial Court’s Decision

As noted, Gallegos contended in the trial court that the arbitration agreement was 

not subject to the FAA because she was an exempted transportation worker under section 

1 of the FAA. After preliminarily finding that “there was a written agreement to 

arbitrate,” the trial court ruled Gallegos had not established she was an exempted 

transportation worker and therefore the agreement was subject to the FAA. Specifically, 

the court ruled in pertinent part:

“The FAA’s mandate is to enforce arbitration. (AT&T Mobility LLC 

v. Concepcion (2011) 563 U.S. 333, 344.) To ensure that arbitration 
7

agreements are enforced according to their terms, the FAA preempts all 

state laws that apply of their own force to limit those agreements against 

the parties’ will or to withdraw the power to enforce them. (See e.g., Perry 

v. Thomas (1987) 482 U.S. 483, 490-491.) Labor Code section 229 

unmistakably conflicts with the FAA, and must give way to the FAA if it 

applies. (See id. at p. 491.) 

“Defendants submit that they assigned plaintiff to their client, 

defendant Touchstone Pistachio Company (“Touchstone”). [Citation.] 

Touchstone ships ... product through the channels of interstate commerce 

throughout the United States and internationally. [Citation.] Defendants’ 

associates are responsible for sorting, stacking, boxing, and labeling the 

products that are delivered to customers. [Citation.] Based on these 

statements, defendants submit that the arbitration agreement involves 

commerce as defined by the FAA. (9 U.S.C. § 2.)

“In opposition, plaintiff does not materially contest defendants’ 

characterization of the work. Rather, plaintiff argues that those 

characteristics exempt the arbitration agreement from the FAA because 

though the work involves interstate commerce ... [t]ransportation workers 

actively engaged in transportation are exempt from the FAA. (Southwest 

Airlines Co. v. Saxon (2022) [596 U.S. 450, 458; 9 U.S.C. § 1].)

“Though defendants concede that the personnel they submit to 

Touchstone sorts, stacks, boxes, and labels products that will be transported 

domestically and internationally, with a direct impact of placing finished 

goods in the stream of interstate commerce [citation], plaintiff declares that 

she merely transported and packed pistachios from conveyer to conveyer 

[citation]. While plaintiff placed pistachios into large transport bags, she 

merely observed the loading of those transport bags rather than ‘doing the 

work’ of the loading. (Compare Southwest Airlines Co. v. Saxon, supra, 

[596 U.S. at p. 458].) Based on the above, the court finds that the FAA 

preemption applies. Accordingly, Labor Code section 229 is preempted.” 

On appeal, Gallegos contends the trial court erred in ruling the FAA applied to the

arbitration agreement because Gallegos was not an exempted transportation worker under

the Act. Accordingly, the question before us is whether Gallegos was a transportation 
8

worker within the meaning of Section 1 of the FAA. We conclude she was not a 

transportation worker under Section 1 of the FAA. Therefore, we affirm the trial court. 

C. Legal Framework: Who is a “Transportation Worker” Within the 

Meaning of The Residual Clause of Section 1 of the FAA (9 U.S.C. § 1) 

Under Saxon v. Southwest Airlines and Other Relevant Authorities

“The FAA was enacted in 1925, 43 Stat. 883, and then reenacted and codified in 

1947 as Title 9 of the United States Code.... [I]ts ‘purpose was to reverse the 

longstanding judicial hostility to arbitration agreements that had existed at English 

common law and had been adopted by American courts, and to place arbitration 

agreements on the same footing as other contracts.’ ” (EEOC v. Waffle House, Inc. 

(2002) 534 U.S. 279, 288-289 (Waffle House); Circuit City Stores v. Adams (2001) 532 

U.S. 105, 111 (Circuit City) [“[T]he FAA[, which was enacted in light of] hostility of 

American courts to the enforcement of arbitration agreements ... compels judicial 

enforcement of a wide range of written arbitration agreements.”].)

The FAA provides that “an agreement in writing to submit to arbitration an 

existing controversy” arising out of a contract involving commerce “shall be valid, 

irrevocable, and enforceable.” (9 U.S.C. § 2; Bissonnette v. LePage Bakeries Park St., 

LLC (2024) 601 U.S. 246, 250 (Bissonnette) [“The FAA provides generally that 

arbitration agreements are ‘valid, irrevocable, and enforceable, save upon such grounds 

as exist at law or in equity for the revocation of any contract.’ ”].) The United States 

Supreme Court has interpreted the FAA broadly to apply to “persons or activities”

affecting interstate commerce. (Allied-Bruce Terminix Cos. v. Dobson (1995) 513 U.S. 

265, 273-274, 281.) The high court has also clarified that “[e]mployment contracts, 

except for those covering workers engaged in transportation, are covered by the [FAA].” 

(Waffle House, supra, 534 U.S. at p. 289.) When the FAA applies, it in turn preempts 
9

Labor Code section 229’s prohibition against mandatory arbitration of wage and hour 

claims. (See, e.g., Nixon, supra, 67 Cal.App.5th at p. 947.)

The residual clause of 9 U.S.C. section 1 provides for an exception to the scope of 

the FAA; specifically it states: “but nothing herein contained shall apply to contracts of 

employment of seamen, railroad employees, or any other class of workers engaged in

foreign or interstate commerce.” (9 U.S.C. § 1, italics added; see, e.g., Ortiz v. Randstad 

Inhouse Services, LLC (2024 9th Cir.) 95 F.4th 1152, 1159 (Ortiz), quoting Circuit City, 

supra, 532 U.S. at p. 119 [“Though the FAA’s pro-arbitration mandate is broad, its reach 

is not universal. Section 1, for example, exempts [in its residual clause] the ‘contracts of 

employment of seamen, railroad employees, or any other class of workers engaged in

foreign or interstate commerce.’ ”].) “ ‘In keeping with the FAA’s policy favoring 

arbitration, the Supreme Court has construed the residual clause in § 1 narrowly, applying 

it only to ‘contracts of employment of transportation workers.’ ” (Ortiz, at p. 1159.)

The United States Supreme Court addressed the scope of the residual clause of 

9 U.S.C. section 1, in two recent cases, Southwest Airlines Co. v. Saxon, supra, 596 U.S. 

450 (Saxon) and Bissonnette, supra, 601 U.S. 246. In these cases, the Supreme Court 

restated its rationale for narrowly interpreting section 1 of the FAA: 

“More than twenty years ago, in Circuit City Stores, Inc. v. 

Adams[, supra, 532 U.S. 105], we recognized that § 1 is limited to 

transportation workers. Adams, a sales counselor at an electronics store, 

claimed that § 1 exempts all contracts of employment, regardless of what a 

worker does. [Citation.] But he failed to account for ejusdem generis, the 

familiar canon of statutory interpretation that courts ‘interpret a “general or 

collective term” at the end of a list of specific items in light of any 

“common attribute[s]” shared by the specific items.’ [Citation.] Applying 

that canon to § 1, we explained that the general phrase ‘class of workers 

engaged in ... commerce’ is ‘controlled and defined by reference to’ the 

specific categories ‘seamen’ and ‘railroad employees’ that precede it. 
10

[Citation.] And we concluded that the ‘linkage’ between ‘seamen’ and 

‘railroad employees’ is that they are both transportation workers. 

[Citation.] The class of workers in the residual clause was therefore limited 

in the same way.” (Bissonnette, supra, [601 U.S. at pp. 252-253], citing, 

inter alia, Saxon, supra, 596 U.S. at p. 458; see Wallace v. Grubhub 

Holdings, Inc. (2020) 970 F.3d 798, 800-801 (Wallace) [in Circuit City

“the Court explained that the phrase ‘engaged in commerce’ as used in § 1 

meant something narrower than ‘affecting commerce’ or ‘involving 

commerce’ as used in § 2,” in that “the phrase ‘engaged in commerce’ has 

‘a more limited reach,’ [citation] ... referring instead to ‘active 

employment’ in interstate commerce”].)

In addition, the Supreme Court noted: “[The narrow] reading of § 1 harmonized 

the FAA with other statutes designed to protect the movement of good in commerce. 

[Citation.] Congress enacted the FAA in 1925 to override the longstanding refusal of 

courts to enforce arbitration agreements. [Citation.] At that time, though, specific 

statutory dispute resolution regimes already covered seamen and railroad employees—

‘transportation workers’ who played a ‘necessary role in the free flow of goods.’ 

[Citation.] An exemption from the FAA for those workers was thus required to avoid 

‘unsettl[ing]’ those schemes ... while ‘ensur[ing] that workers in general would be 

covered by’ the FAA.” (Bissonnette, supra, [601 U.S. at p. 253].) Recently, in 

Bissonnette, the high court definitively clarified that there was no requirement that “a 

transportation worker must work for a company in the transportation industry to be 

exempt under § 1 of the FAA.” (Bissonnette, supra, [at p. 252].)

Saxon is most instructive for present purposes. In Saxon, the plaintiff Saxon, a 

ramp supervisor for Southwest Airlines at Chicago Midway International Airport, 

brought a putative class action against Southwest Airlines, which then sought to enforce 

its arbitration agreement with her under the FAA. Saxon argued she was an exempt 

transportation worker under the residual clause of section 1 of the FAA (the residual 

clause “exempts from the statute’s ambit ‘contracts of employment of seamen, railroad 
11

employees, or any other class of workers engaged in foreign or interstate commerce’ ”). 

(Saxon, supra, 596 U.S. at p. 454.) The Supreme Court conducted a two-step analysis to 

resolve the question whether Saxon was an exempt transportation worker, stating: “We 

begin by defining the relevant ‘class of workers’ to which Saxon belongs. Then, we 

determine whether that class of workers is ‘engaged in foreign or interstate commerce.’ ” 

(Id. at p. 455.) 

The Court clarified that Saxon was “a member of a ‘class of workers’ based on

what she does at Southwest, not what Southwest does generally.” (Saxon, supra, 596 

U.S. at p. 456, italics added.) The Court further determined that “Saxon belongs to a 

class of workers who physically load and unload cargo on and off airplanes on a frequent 

basis.” (Ibid.) In the second step of the analysis, the Court considered whether “that 

class of airplane cargo loaders is ‘engaged in foreign or interstate commerce’ under § 1.” 

(Ibid.) The Court concluded “that it is.” (Ibid.) Saxon was therefore exempted from the 

FAA’s coverage. 

Saxon elucidated the standards it applied in reaching its conclusion in step two of 

the analysis. Saxon explained that “any class of workers directly involved in transporting 

goods across state or international borders falls within § 1’s exemption,” and “[a]irplane 

cargo loaders are such a class.” (Saxon, supra, 596 U.S. at p. 457.) Saxon, quoting 

Baltimore & Ohio Southwestern Railroad Co. v. Burtch (1924) 263 U.S. 540, 544, 

observed: “We have said it is ‘too plain to require discussion that the loading or 

unloading of an interstate shipment by the employees of a carrier is so closely related to 

interstate transportation as to be practically a part of it.’ ” (Saxon, supra, at p. 457.) 

Saxon further noted: “We think it equally plain that airline employees who physically 

load and unload cargo on and off planes traveling in interstate commerce are, as a 
12

practical matter, part of the interstate transportation of goods. They form ‘a class of 

workers engaged in foreign or interstate commerce.’ ” (Ibid.) Saxon also pointed out

that while the high court did not provide, in Circuit City, “a complete definition of 

‘transportation worker’ ” for purposes of section 1 of the FAA, it “indicated that any such 

worker must at least play a direct and ‘necessary role in the free flow of goods’ across 

borders.” (Id. at p. 458.) Saxon added: “Put another way, transportation workers must 

be actively ‘engaged in transportation’ of those goods across borders via the channels of 

foreign or interstate commerce.” (Ibid.)

Saxon concluded: “Cargo loaders exhibit this central feature of a transportation 

worker ... [that is,] one who loads cargo on a plane bound for interstate transit is 

intimately involved with the commerce (e.g., transportation) of that cargo. ‘[T]here could 

be no doubt that [interstate] transportation [is] still in progress,’ and that a worker is 

engaged in that transportation, when she is ‘doing the work of unloading’ or loading

cargo from a vehicle carrying goods in interstate transit.” (Saxon, supra, 596 U.S. at pp. 

458-459.)

Along with Saxon, the parties here cite a recent Ninth Circuit case, Ortiz. The 

plaintiff there, Ortiz, worked for a staffing company, Randstad Inhouse Services, LLC 

(Randstad), that assigned him to work for GXO Logistics Supply Chain, Inc. (GXO). 

GXO operates warehouse and distribution facilities for Adidas and Ortiz worked at a 

California warehouse facility operated by GXO. (Ortiz, supra, 95 F.4th at p. 1157.) 

“The warehouse where Ortiz worked receives Adidas watches, apparel, and shoes from 

mostly international locations, including Asia, South America, and Central America. 

Products remain at the warehouse for anywhere from several days to a few weeks, after 

which they are shipped to end-use consumers and retailers in a variety of states.” (Ibid.) 
13

Ortiz’s duties included picking up packages and transporting them to the warehouse racks 

to organize them, assisting pickers in obtaining packages so they could be shipped out, 

and assisting the Outflow Department to prepare packages for their subsequent shipment. 

(Id. at p. 1158.) Although Ortiz had signed an arbitration agreement with Randstad, he 

filed a class action against Randstad alleging various violations of California labor law. 

Randstad filed a motion to compel arbitration and Ortiz asserted the FAA did not apply 

because Ortiz qualified as an exempt “transportation worker.” (Ibid.)

In the first step of the requisite analysis under Saxon, the Ortiz court recognized 

that Ortiz belonged to a class of warehouse workers who moved packages to and from 

storage racks, helped other employees obtain packages so they could be shipped, and 

assisted the Outflow Department to prepare packages for their subsequent shipment. 

(Ortiz, supra, 95 F.4th at p. 1161.) In the second step of the analysis, Ortiz concluded: 

“Like Saxon, Ortiz handled Adidas products near the very heart of their supply chain. In 

each case, the relevant goods were still moving in interstate commerce when the 

employee interacted with them, and each employee played a necessary part in facilitating 

their continued movement.” (Id. at p. 1162.) “Saxon handled goods as they journeyed 

from terminal to plane, plane to plane, or plane to terminal, while Ortiz handled them as 

they went through the process of entering, temporarily occupying, and subsequently 

leaving the warehouse—a necessary step in their ongoing interstate journey to their final 

destination.” (Id. at p. 1162.) 

Ortiz cogently sums up Saxon’s central point: “Though the Court’s different 

formulations of the [applicable] test—direct and necessary, active engagement, and 

intimate involvement—all vary slightly, Saxon’s bottom line is that to qualify as a 

transportation worker, an employee’s relationship to the movement of goods must be 
14

sufficiently close enough to conclude that his work plays a tangible and meaningful role 

in their progress through the channels of interstate commerce.” (Ortiz, supra, 95 F.4th at 

p. 1160, italics added.) Ortiz points out: “Saxon’s reasoning ... is consistent with the 

fundamental reality that within any given company, different classes of employees often 

have markedly different roles.... For example, under Saxon, a janitor would not qualify 

as a transportation worker even if he was employed by Southwest Airlines because his 

role is not direct or necessary to, actively engaged in, or intimately involved with 

transportation. [Citation.] On the other hand, a truck driver employed by a bakery or a 

temporary employee employed by a warehousing company might qualify despite the 

overarching nature of their employers’ business because their particular job descriptions 

meet the standards laid out in Saxon.” (Id. at p. 1165.) The key aspect of the analysis is 

that section 1 “ ‘directs the interpreter’s attention to the performance of work.’ ” (Ibid.)

Ortiz reemphasized Saxon’s focus on the worker’s role—even if purely 

localized—in the ongoing flow of goods across borders: “Ultimately, the Court held that 

Saxon met the interrelated standards it had just pronounced because ‘when she is “doing 

the work of unloading” or loading cargo from a vehicle carrying goods in interstate

transit,’ ‘there could be no doubt that interstate transportation is still in progress,’ and 

that [Saxon] is engaged in that transportation.’ ” (Ortiz, supra, 95 F.4th at p. 1165, italics 

added.) Ortiz reasoned, with respect to the plaintiff, Ortiz, in that case: “If the same can 

be said of Ortiz, then under Saxon, he too qualifies as an exempt transportation worker.” 

(Id. at p. 1160.) Ortiz concluded that Ortiz was a transportation worker under section 1 

of the FAA (and as such was exempt from the FAA), because Ortiz’s work occurred in 

the course of the ongoing flow of Adidas products through the channels of interstate 

commerce. The court observed: “Without employees like Ortiz, Adidas products that 
15

arrived at GXO’s warehouse would not be properly processed, organized, stored, or 

prepared for the next leg of their interstate journey.”5 (Ortiz, supra, 95 F.4th at p. 1163.) 

Finally, it bears mention that in Bissonnette, the Supreme Court rejected the 

defendant employer’s argument to the effect that, because “ ‘virtually all products move 

in interstate commerce’ ... virtually all workers who load or unload goods—from pet 

shop employees to grocery store clerks—will be exempt from arbitration.” (Bissonnette, 

supra, 601 U.S. at p. 256.) Bissonnette stressed: “We have never understood § 1 to 

define the class of exempt workers in such limitless terms. To the contrary, as we held in 

Saxon, a transportation worker is one who is ‘actively’ ‘ “engaged in transportation” of 

... goods across borders via the channels of foreign or interstate commerce.’ ” (Ibid.) 

“In other words, any exempt worker ‘must at least play a direct and “necessary role in the 

free flow of goods” across borders.’ ” (Ibid.) Bissonnette concluded: “These 

requirements ‘undermine[] any attempt to give the provision a sweeping, open-ended 

construction,’ instead limiting § 1 to its appropriately ‘narrow’ scope.” (Ibid.)

D. Analysis

Gallegos’s work—which entailed packing or bagging the pistachios after they 

were processed—occurred at the end of the production line at Touchstone’s Chowchilla 

facility. Applying Saxon, we conclude that Gallegos was part of a class of workers who 

packed and bagged the pistachios as they came off the production line at Touchstone’s 

nut processing facility. As for the work performed by Gallegos and other members of the 

5 By stressing that Ortiz’s work occurred in the course of the ongoing flow of 

Adidas products through the channels of interstate commerce, Ortiz distinguished that 

case from one “involv[ing] an employee who handles goods at or near the logistical end 

of an interstate or international supply chain,” which presents more “thorny questions 

about when the interstate transport of goods ends and the purely intrastate transport of the 

same goods begins.” (Ortiz, supra, 95 F.4th at p. 1161.) 
16

class of workers to which she belonged, their work can fairly be characterized as end-ofthe-production-line packing, packaging, and bagging work. 

Gallegos’s work is thus distinguishable from the work performed by Saxon and 

Ortiz. Saxon and Ortiz handled goods as they moved through the channels of interstate 

commerce. In contrast, Gallegos packed and packaged processed pistachios in the very 

facility in which they were processed—before they entered the stream of interstate 

commerce. (See Wallace, supra, 970 F.3d at p. 802 [to trigger exemption of section 1 of 

FAA, “a class of workers must themselves be ‘engaged in the channels of foreign or 

interstate commerce’ ”].) Bagging the pistachios amounts to the culmination of or final 

step in, the production process, and is fully performed in advance of the interstate 

transportation process. The work performed by Gallegos does not directly launch the 

pistachios into interstate commerce, nor does it necessarily propel the pistachios through 

the channels of interstate commerce. 

While the question is closer than it would be had Gallegos worked as, say, a 

janitor or security guard at Touchstone, in the end the class of workers to which Gallegos 

belonged cannot be said to be “actively engaged in” or “intimately involved with” the 

interstate transport of the pistachios. (Wallace, supra, 970 F.3d at p. 801 [“Both we and 

our sister circuits have repeatedly emphasized that transportation workers are those who 

are ‘actually engaged in the movement of goods in interstate commerce.’ ”].) On the 

contrary, packing pistachios on an assembly line is part of the chain of assembly or 

preparation of good for distribution, sale, and consumption. Hence, the class of workers 

relevant here is more akin to production-line workers than transportation workers. 

(Saxon, supra, 596 U.S. at p. 462 [fact that activity at issue may be “ ‘perceptibly 

connected to ... instrumentalities’ of interstate commerce [is] not enough”; the activity 
17

must be “ ‘within the flow of interstate commerce’ ”]; Wallace, supra, 970 F.3d at p. 801 

[“residual clause ... exempts only workers who are akin to seamen and railroad 

employees”].)

We conclude that Gallegos was not a transportation worker within the meaning of 

the residual clause of section 1 of the FAA. Accordingly, she does not fall within the

exemption from the FAA provided by section 1 of the Act. The FAA applies to the 

arbitration agreement Gallegos signed when she was hired by Partners Personnel. We 

therefore affirm the trial court’s ruling to this effect.

II. The Arbitration Agreement Was Not Unconscionable

Gallegos next argues the trial court erred in enforcing the arbitration agreement 

because the agreement was both procedurally and substantively unconscionable and was 

therefore invalid and unenforceable. We disagree and affirm the trial court’s ruling. 

A. Standard of Review 

In the absence of meaningful factual disputes, the question of unconscionability of 

an arbitration agreement is reviewed de novo. (Lhotka v. Geographic Expeditions, Inc.

(2010) 181 Cal.App.4th 816, 820.) The trial court’s ruling on severance of a provision in 

an arbitration agreement is reviewed for abuse of discretion. (Id. at pp. 820-821.)

B. Trial Court’s Ruling

The trial court ruled on Gallegos’s unconscionability challenge as follows (the 

footnote that appears in the following excerpt is in the original):

“If the court finds as a matter of law that a contract or any portion of 

it was unconscionable at the time it was made, the court may refuse to 

enforce it, or may enforce the contract without the unconscionable 

provisions, or limit their application to avoid any unconscionable result. 

(Civ. Code[,] § 1670.5, subd. (a).) There are two prongs considered in this 

analysis: procedural unconscionability and substantive unconscionability. 

Both must be present for a court to exercise its discretion to refuse to 
18

enforce an arbitration agreement under the doctrine of unconscionability. 

(Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 

Cal.4th 83, 113.) They need not be present in equal amounts; essentially a 

sliding scale is used, and where there is substantive unconscionability, less 

procedural unconscionability need be shown. (Id. at pp. 113-114.)

“Plaintiff argues that the arbitration agreement is procedurally 

unconscionable because the arbitration agreement is a contract of adhesion. 

Plaintiff was provided the arbitration agreement as a take-it-or-leave-it 

basis.

“A contract of adhesion is one imposed and drafted by the party of 

superior bargaining strength, and relegates to the subscribing party only the 

opportunity to adhere to the contract or reject it. (Mission Viejo Emergency 

Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 

1146, 1159.) Adhesion does not per se render the arbitration agreement 

unenforceable, since such contracts ‘are an inevitable fact of life for all 

citizens, businessman and consumer alike.’ (Graham v. Scissor-Tail, Inc. 

(1981) 28 Cal.3d 807, 817-818.) A finding of procedural unconscionability 

does not mean that a contract will not be enforced, but rather that courts 

will scrutinize the substantive terms of the contract to ensure they are not 

manifestly unfair or one-sided. (Baltazar v. Forever 21, Inc. (2016) 62 

Cal.4th 1237, 1244.)6 In other words, there must also be substantive 

unconscionability. (Armendariz, supra, 24 Cal.4th at p. 114.)

“The substantive inquiry considers whether the overall bargain is 

overly harsh or unreasonably one sided. (Armendariz, supra, 24 Cal.4th at 

p. 114.) California courts have stated the standard variously, defining it as, 

for example: so one sided as to shock the conscience (Pinnacle Museum 

Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 

223, 246); unduly oppressive (Perdue v. Crocker National Bank (1985) 38 

Cal.3d 913, 925); and unfairly one-sided (Little v. Auto Stiegler, Inc. (2003) 

29 Cal.4th 1064, 1071). The California Supreme Court has acknowledged 

these variations and has clarified the differing formulations mean the same 

thing. (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 911.)

6 “Plaintiff’s further argument that the arbitral forum’s rules were not provided 

does not aid plaintiff. Plaintiff makes no explanation as to how the arbitration rules 

‘artfully hides’ some substantively unconscionable term of which she was unaware, as 

discussed below. (See Balthazar, supra, 62 Cal.4th at p. 1246.)” (Fn. in original.)
19

“In the employment context specifically, to avoid a finding of 

substantive unconscionability, the agreement must include the following 

five minimum requirements designed to provide necessary safeguards to 

protect unwaivable statutory rights where important public polices are 

implicated: 1) a neutral arbitrator; 2) adequate discovery; 3) a written, 

reasoned, opinion from the arbitrator; 4) identical types of relief as 

available in a judicial forum; and 5) that undue costs of arbitration will not 

be placed on the employee. (Armendariz, supra, 24 Cal.4th at p. 102.)

“Plaintiff argues that the arbitration agreement is substantively 

unconscionable as unfairly one-sided because the agreement allows for the 

severe limitation of discovery. However, [adequate] discovery does not 

mean unfettered discovery. (Mercuro v. Superior Court (2002) 96 

Cal.App.4th 167, 184.) The arbitration agreement affords the parties 

reasonable discovery, as may be limited by the arbitrator. [Citation.] Such 

a provision is sufficient to satisfy the adequate discovery factor. (See 

Roman v. Superior Court (2009) 172 Cal.App.4th 1462, 1475-1476.) 

“Plaintiff further argues that the agreement is substantively 

unconscionable because unlike defendants, plaintiff could not seek civil 

remedies [for] criminal misconduct under the arbitration agreement. It 

would appear that the arbitration agreement limits plaintiff’s ability to 

pursue remedies for any criminal wrongdoing she may discover against the 

employer, which would be unfairly one-sided.

“Defendants offer that any portion found to be substantively 

unconscionable be severed. The arbitration agreement provides for 

severability. [Citation.] Further, courts have the capacity to cure an 

unlawful contract through severance or restriction of the offending clause. 

(Armendariz, supra, 24 Cal.4th at pp. 123-124.) Courts look to the various 

purposes of the contract; if the central purpose is tainted with illegality, 

then the contract as a whole cannot be enforced. (Id. at p. 124.) If the 

illegality is collateral to the main purpose of the contract, and the illegal 

provision can be extirpated from the contract, then severance and restriction 

is appropriate.

“This singular defect does not appear to affect the main purpose of 

the agreement, which is [to] arbitrate all disputes that arise out of plaintiff’s 

employment relationship, including both the claims defendants may have 

against plaintiff, and the claims plaintiff may have against defendants and 
20

its affiliates and clients. [Citation.] Plaintiff does not argue that criminal 

conduct is related, or was anticipated to be related, to her employment 

relationship with defendants. The court finds that the arbitration agreement 

is in any event curable through severance of that provision. 

“Having severed the singular [defective] provision, the court finds 

that the arbitration agreement is not so unconscionable as to be 

unenforceable.” 

C. Analysis

In order to prevail on unconscionability, Gallegos must show both “procedural” 

and “substantive” unconscionability. (Armendariz, supra, 24 Cal. 4th at p. 114.)

Substantive unconscionability “ ‘pertains to the fairness of an agreement’s actual 

terms and to assessments of whether they are overly harsh or one-sided.’ ” (The

McCaffrey Group, Inc. v. Superior Court (2014) 224 Cal.App.4th 1330, 1349

(McCaffrey).) Because “[c]ommerce depends on the enforceability, in most instances, of 

a duly executed written contract[,] [a] party cannot avoid a contractual obligation merely 

by complaining that the deal, in retrospect, was unfair or a bad bargain.” (Sanchez v. 

Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 911.) Instead, a contract term must be 

“ ‘ “ ‘ “overly harsh [citation]” ’ ” ’, “ ‘unduly oppressive’ ” [citation], “ ‘so one-sided as 

to “shock the conscience” ’ ” [citation], or “unfairly one-sided [citation].” ’ ” (Id. at pp. 

910-911.) “ ‘All of these formulations point to the central idea that unconscionability 

doctrine is concerned not with “a simple old-fashioned bad bargain” [citation], but with 

terms that are “unreasonably favorable to the more powerful party [citation].” ’ ” (Id. at 

p. 911.) Moreover, “ ‘[i]f the illegality is collateral to the main purpose of the contract, 

and the illegal provision can be extirpated from the contract,’ ” then the defective 

provision may be severed. (Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974, 

996; accord Baeza v. Superior Court (2011) 201 Cal.App.4th 1214, 1230.)
21

Gallegos posits the arbitration agreement was substantively unconscionable for 

two reasons: (1) it contains unilateral carveouts that benefit Partners Personnel, and (2) it 

allows the arbitrator to limit discovery. We agree with the trial court that the disputed 

terms do not render the arbitration agreement unconscionable.

(i) The Arbitration Agreement Is Not Rendered Substantively 

Unconscionable By The Ostensible Unilateral Carveouts 

Identified By Gallegos

With regard to her argument that the arbitration agreement contains unilateral 

carveouts in favor of Partners Personnel, Gallegos focuses on the last sentence/provision 

in paragraph 2 of the agreement (paragraph 2 is entitled, “Claims Not Covered by This 

Agreement”). Paragraph 2 of the agreement provides: “The following Claims are not 

subject to arbitration under this Agreement: (1) claims for workers’ compensation 

benefits, state disability benefits, state unemployment benefits, including but not limited 

to the Company’s profit sharing and 401(k) Plan; (2) administrative charges filed with a 

federal, state, or local government office or agency, such as the Equal Employment 

Opportunity Commission (“EEOC”) or the National Labor Relations Board (“NLRB”); 

(3) a judicial action by either party for a temporary restraining order or a preliminary 

injunction pending arbitration; and (4) any claims that, as a matter of law, cannot legally 

be subject to arbitration. This Agreement also does not limit the Company’s ability to 

report and pursue remedies for any criminal wrongdoing it may discover against 

Employee.” (Italics added.) 

Gallegos focuses on the last sentence of paragraph 2 (italicized above). She 

argues it lacks mutuality and thereby renders the arbitration agreement unconscionable. 

When viewed in isolation, the disputed sentence appears to be a unilateral carveout in 

favor of Partners Personnel insofar as it permits Partners Personnel to report and pursue 
22

remedies for any potential criminal wrongdoing committed by its employees without 

reciprocally permitting employees to do the same with respect to criminal wrongdoing by 

the company. However, paragraph 2 also exempts from arbitration employees’ claims for 

workers’ compensation, state disability benefits, and state unemployment benefits as well 

as employee claims filed with “a federal, state, or local government office or agency” (for 

example, claims for wage theft and other law violations). Thus, paragraph 2 permits 

employees to report law violations by the company to government agencies and benefit 

from any adverse findings rendered against the company, and it permits the company to

report and pursue remedies for criminal wrongdoing by employees. 

When paragraph 2 is considered as a whole, despite some imbalance, it does not 

render the arbitration agreement unconscionable as so one sided as to shock the 

conscience. (Cf. Ramirez v. Charter Communications, Inc. (2022) 75 Cal.App.5th 365, 

382 (Ramirez) [“An agreement may be unfairly one-sided if it compels arbitration of the 

claims more likely to be brought by the weaker party but exempts from arbitration the 

types of claims that are more likely to be brought by the stronger party.”]; see Davis v. 

Kozak (2020) 53 Cal.App.5th 897, 910 [“ ‘Agreements to arbitrate must contain at least 

“ ‘a modicum of bilaterality’ ” to avoid unconscionability.’ ”].)

Gallegos also argues that the following provision in paragraph 6 unfairly targets 

only employees: “The Parties agree and understand that any relief or recovery to which 

Employee is entitled from any Claims arising out of Employee’s employment or 

cessation of employment shall be limited to that awarded by the arbitrator.” However, 

paragraph 6 is not unfair as it also unequivocally states, with respect to both Partners 

Personnel and its employees, that “[a]ny relief or recovery shall by limited to that 
23

awarded by the arbitrator.” In short, the agreement makes clear that both parties are 

equally bound by the arbitrator’s award. 

(ii) Reasonable Discovery Limitations Do Not Render the 

Arbitration Agreement Substantively Unconscionable

Paragraph 6 of the arbitration agreement provides: “The parties shall be entitled to 

engage in reasonable discovery, as may be limited by the arbitrator, in the forms of 

requests for documents, interrogatories, requests for admission, physical and/or mental 

examinations and depositions, in order to obtain information to prosecute or defend the 

claims brought.” (Italics added.) Gallegos contends the italicized phrase in the above 

provision renders the arbitration agreement substantively unconscionable. We reject this 

contention.

Specifically, Gallegos argues: “The language in the Arbitration Agreement does 

not articulate specific limitations on discovery. Instead, the language is ambiguous and 

may be read to grant an arbitrator carte blanche authority to place as many limits on 

discovery as they desire. Because an arbitrator could use this language to impose severe 

or total limits on discovery, the Arbitration agreement ... is substantively 

unconscionable.” Gallegos argues the “potential discovery limitations” in the arbitration 

agreement impair her ability “to vindicate her rights” and “at the very least compound the 

one-sidedness of the Arbitration Agreement.” 

“A limitation on discovery is an important way in which arbitration can provide a 

simplified and streamlined procedure for the resolution of disputes.” (Davis v. Kozak, 

supra, 53 Cal.App.5th at p. 910.) “At the same time, ‘[a]dequate discovery is 

indispensable for the vindication of statutory claims.’ ” (Ibid.) “In this context, 

‘adequate’ does not mean ‘unfettered.’ ” (Ibid.) “We assume, as we must, that any 
24

selected arbitrator will operate in a reasonable manner in conformity with the law.” (Id. 

at p. 914.) 

Here, the arbitration agreement entitles the parties to conduct “reasonable 

discovery.” And the AAA Employment Arbitration Rules and Mediation Procedures, 

which are referenced in the arbitration agreement, state that “discovery parameters” will 

be established at the arbitration management conference, and that the arbitrator shall have 

the authority to order discovery, “by way of deposition, interrogatory, document 

production, or otherwise,” that is “necessary to a full and fair exploration of the issues in 

dispute.” Speculation aside, Gallegos has not established how paragraph 6’s “reasonable 

discovery” provision hinders her ability to fairly arbitrate her claims.

(iii) There Is No Appreciable Procedural Unconscionability

Procedural unconscionability examines “whether circumstances of the contract’s 

formation created such oppression or surprise that closer scrutiny of its overall fairness is 

required.” (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126 (OTO). ) Oppression 

“ ‘ “ ‘involves lack of negotiation and meaningful choice,’ ” ’ ” while surprise involves 

hiding unconscionable provisions “ ‘ “ ‘within a prolix printed form.’ ” ’ ” (Ibid.)

Gallegos argues that procedural unconscionability exists because (1) the 

agreement was a contract of adhesion and presented in an oppressive manner; and (2) 

because she could not review the AAA rules in Spanish. We reject these contentions.

First, the record does not indicate that Gallegos was subjected to oppression in 

signing the agreement. The agreement specifies that entering into the agreement was 

voluntary. In addition, the agreement states that should an employee elect “not to sign 

this Agreement, no adverse employment action would be taken against Employee by the 
25

Company.” Gallegos had the option of declining to sign the agreement but chose instead 

to sign it.

Gallegos also asserts she felt rushed when going through the arbitration agreement 

because the computer she used to do so had a timer or countdown clock that

automatically advanced the materials she was viewing. However, these assertions are 

belied by the record. The record reveals that associates are not timed during the 

arbitration phase of the onboarding process. Cindy Sanchez, a client specialist for 

Partners Personnel, declared: “[Only] one phase of the onboarding program ... that 

contains a clock that records how long it takes each associate to complete that phase of 

the program. That phase pertains to the topic of sexual harassment. The timer is 

necessary because under state law, employees are required to complete at least one hour 

of sexual harassment training every two years. The program records associates’ time to 

make sure that they’re spending at least one hour during the sexual harassment training, 

not to make them complete the training faster. Also, if an associate decides to complete 

the sexual harassment training over several sessions, which they are allowed to do, the 

time recording feature tracks the total amount of time spent in the training over the course 

of several sessions. There is no other phase of the associate onboarding process that 

involves a timer or clock.” (Italics added.) 

Gallegos’s additional argument that Partners Personnel’s failure to attach to the 

arbitration agreement, a Spanish translation of the applicable AAA rules rendered the 

arbitration agreement procedurally unconscionable, is also unavailing. The arbitration 

agreement specifies: “The arbitration shall be conducted by a single neutral arbitrator in 

accordance with the then-current Employment Arbitration [Rules] and Mediation 

Procedures of the American Arbitration Association (“AAA”), which can be viewed at 
26

http://www.adr.org/employment. Employee may obtain a copy of these rules upon 

request.” Gallegos complains that the specified website provides the applicable rules in 

English only. However, Gallegos’s declaration does not state she attempted to access the 

rules online, requested that an interpreter translate the rules from English to Spanish, or 

asked for a Spanish-language copy of the rules. Nor does Gallegos contend she would 

not have signed the agreement had she timely reviewed the rules. 

We conclude Gallegos has not established procedural unconscionability on the 

ground that a Spanish translation of the applicable AAA rules was not attached to the 

arbitration agreement. (See Serafin v. Balco Properties Ltd., LLC (2015) 235 

Cal.App.4th 165, 180 [no unconscionability where plaintiff was informed she could 

obtain copy of AAA rules from human resources or AAA website]; Lane v. Francis 

Capital Management LLC (2014) 224 Cal.App.4th 676, 691 [failure to attach rule did not 

create surprise and was not procedurally unconscionable because rules were accessible on 

internet]; Peng. v. First Republic Bank (2013) 219 Cal.App.4th 1462, 1472 [where 

plaintiff does not “identify any feature of the AAA rules that prevent fair and full 

arbitration,” the “failure to attach the AAA rules ... is insufficient grounds to support a 

finding of procedural unconscionability”]; Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 

1237, 1246 [plaintiff’s complaint that employer did not attach applicable AAA rules for 

arbitration of employment disputes lacked force where her challenge to enforcement of 

the agreement had “nothing to do with the AAA rules”].)

Finally, Gallegos’s argument that the arbitration agreement was infected with 

procedural unconscionability because it was a contract of adhesion, also fails. “When, as 

here, there is no other indication of oppression or surprise, ‘the degree of procedural 

unconscionability of an adhesion agreement is low, and the agreement will be 
27

enforceable unless the degree of substantive unconscionability is high.’ ” (Serpa v. 

California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704; Ramirez, supra, 

75 Cal.App.5th at p. 373 [“ ‘the fact that the arbitration agreement is an adhesion contract 

does not render it automatically unenforceable as unconscionable’ ”]; accord McCaffrey, 

supra, 224 Cal.App.4th at p. 1349.) 

(iv) The Arbitration Agreement Was Not Invalid On Grounds of 

Unconscionability 

In sum, an unconscionability finding must be supported by substantive and

procedural unconscionability. (Armendariz, supra, 24 Cal.4th at p. 114.) The party 

asserting unconscionability bears the burden of proving that both exist to some degree. 

(OTO, supra, 8 Cal.5th at p. 129.) Here, Gallegos has not established the existence of 

either substantive or procedural unconscionability. 

DISPOSITION

The judgment is affirmed. Respondents are awarded costs on appeal.

SMITH, J.

WE CONCUR:

LEVY, Acting P. J.

DETJEN, J.